[Editor’s note: This post was originally published at 9:00 PM E.S.T. on February 22, 2015]
Two weeks ago, I reported here that the prosecution had submitted motions to the trial judges in the 9/11 and al-Nashiri military commissions to amend the protective orders in those cases to permit the defendants and their counsel to speak publicly about their treatment and conditions of confinement–a restriction that, as I explained, has been an unnecessary and counterproductive (and legally problematic) blight on the commissions for years. This was big and welcome (if overdue) news, I think. And yet it has not received much media attention, perhaps because, inexplicably, the courts still have not made the motions available to the public.
[ASIDE TO JUDGES POHL AND SPATH: Examination of documents that have been posted reveals that at any given time there are dozens of pleadings and orders in the commissions cases that do not contain classified information and that thus could be cleared well before the 15-day standard for release, but that remain unposted and thus publicly unavailable. Other documents are not cleared for well over 15 days. Please consider changing the process so that documents can be posted as soon as they are cleared for classification. I respectfully urge this not only out of self-interest–it has become virtually impossible for interested observers, here and abroad, to keep track of the motions practice in the commissions when the public docket is miles behind what is happening in the courts; our law students who are traveling to GTMO to observe hearings, for instance, cannot prepare by reading the motions papers–but also because the delay reflects poorly on the OMC, whose web pages all proudly declare “FAIRNESS–TRANSPARENCY–JUSTICE.” In the digital age and with the advent of PACER, we have become accustomed to having access to pleadings in Article III courts in real time, as they are filed–an extraordinarily valuable resource. The Commissions should seek to approximate the same standard, to the extent feasible. Thanks.]
And now, an important follow-up: This past Friday, Judge Spath granted the order in the al-Nashiri case, and issued amended Protective Order No. 1 (AE 13S). This document, too, remains publicly unavailable, without obvious justification (see transparency plea above). But this evening, Chief Prosecutor Mark Martins made this announcement as part of his statement in advance of this week’s hearings in al-Nashiri:
[O]n Friday, the Commission granted the Prosecution’s motion to issue a Second Amended Protective Order #1 governing [the CIA Rendition, Detention and Interrogation] information. AE 13S. Last December the Senate Select Committee on Intelligence made public the Executive Summary of its Study on the RDI Program. Upon release, the unredacted portions of the Executive Summary that had been classified were declassified. The amendments to the Protective Order reflect these declassification decisions by removing restrictive-handling requirements for certain formerly classified information.
In particular, the amendments by the Commission remove two paragraphs from the Protective Order: (1) the paragraph regarding enhanced interrogation techniques that were applied to the Accused from on or around the specified capture date through 6 September 2006, including descriptions of the techniques as applied, the duration, frequency, sequencing, and limitations of those techniques and (2) the paragraph regarding descriptions of the Accused’s confinement conditions from on or around the specified capture date through 6 September 2006.
As I understand it, this means that al-Nashiri and his counsel can now speak publicly about how he was treated while in CIA custody.
Judge Pohl has not yet issued a similar amended protective order in the 9/11 case, apparently because the defense counsel there plan to file a response to the prosecution’s motion to amend the order. (Once again, the details are unavailable because . . . the court has not posted the pleadings.) Judge Pohl presumably will soon amend that order, too.
In his statement this evening, General Martins also announced the following important development concerning the full — still classified and not publicly available — SSCI Report:
[T]he Commission’s 24 June 2014 Order . . . established a ten-category construct “to focus the Prosecution’s analysis of information as it unilaterally fulfills its discovery obligations and responds to current and future discovery requests” for information regarding the CIA’s former Rendition, Detention, and Interrogation (“RDI”) Program.
On Friday, the prosecution informed the Commission [that] after actively seeking to obtain it through appropriate Executive and Legislative Branch channels, on 18 February 2015, the Senate Select Committee on Intelligence authorized the Office of the Chief Prosecutor of Military Commissions to review the full “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program.” AE 206Q. The prosecution has begun its efforts to review the full Study for potentially discoverable information and will continue to work diligently—seven days a week—to fully comply with the June Order and report on further progress.